A 6-3 Court, sharply divided along conservative and liberal jurisprudential lines, has decided the two headlining cases involving affirmative action in university admissions: Students for Fair Admissions, Inc. v. President and Fellows of Harvard College gets top billing, perhaps relating to the alumni status of several Justices, but the decision also resolves the case of Students for Fair Admissions, Inc. v. University of North Carolina. 

Media commentators already are hailing or condemning the decision with broad-brush statements that the Court has overruled all significant precedents tolerating race-based considerations and has totally barred affirmative action in university admissions. Instead, I think it fairer to say that the Supreme Court has significantly limited the use of race as a factor in admissions, in this case holding that the policies of the two universities that grant a racial preference as a “plus” or “tipping” factor violate the Equal Protection Clause of the Fourteenth Amendment. 

The Chief Justice’s majority opinion, the Thomas concurrence, and the Sotomayor and Jackson dissents match the tone and direction of the Justices’ comments at oral argument. So, it is unexceptionable to find that the Chief Justice continues to believe that what to him and his majority colleagues is the use of a racially discriminatory policy to remedy racial discrimination is constitutionally barred. Similarly, in the principal concurrence, Justice Thomas, his arguable personal history aside, believes that affirmative action stigmatizes its beneficiaries and, looking to state systems where affirmative action is barred, is unnecessary for improving diversity in student bodies. Justice Gorsuch, concurring, would also hold that the policies in question violate the precisely worded statutory language of Title VI of the Civil Rights Act of 1964. And Justice Sotomayor, along with Justice Jackson, both predictably and understandably, premise their dissents upon the country’s—and the two universities’—history of persistent racism and the need to address it. As the rather sharply worded exchanges between Justice Thomas and Justice Sotomayor suggest, at least to me, if they (and perhaps others) don’t have completely different world views as to the facts and conditions surrounding the universities’ policies and decision-making, each wing is highly selective in marshaling historical and present facts and the opinions of the amici and other academics who have opined in the area.

I suggest that, notwithstanding the extensive legal, factual, and policy analyses offered by the Justices, the majority opinion rests essentially upon two things. The more significant of the two, first voiced by Justice Alito at oral argument, is that the preferences applied after admissions committees analyze individual admissions are not really “plus” factors because admissions are a zero-sum game in which granting a preference to one person takes something away from his or her competitor for a place at the school. The dissenters, of course, don't see anything as a plus; they see racial considerations as part of a “holistic” approach to evaluation. The second matter relates to decades-old dicta in previous Court opinions, particularly that of now-retired Justice Sandra Day O'Connor, suggesting that, in view of societal changes, the need for affirmative action should evaporate over time. Several of the majority of Justices believe that time has arrived.

My view that affirmative action is not a dead letter for universities finds support, not just in the Chief Justice's opinion, but even in the sharply worded Thomas concurrence. While he exudes no optimism and styles all affirmative action as discrimination, he recognizes that “[t]he Court today makes clear that, in the future, universities wishing to discriminate based on race in admissions must articulate and justify a compelling and measurable state interest based on concrete evidence.” He, of course, “highly doubt[s] any will be able to do so.” I am less sure than he is.

Rather than stating a blanket prohibition of the consideration of race in admissions, the Chief Justice begins by referring to cases that remain in force, particularly Grutter v. Bollinger, 539 U. S. 306 (2003). See also Fisher v. University of Texas at Austin, 570 U.S. 297 (2013). While bemoaning that the 20-year window for race-conscious decisions posited in Grutter might have been expected to be closed by now, the Chief Justice quickly cites Grutter's “strict scrutiny” standard of review and notes that “the Court has permitted race-based college admissions only within the confines of narrow restrictions: such admissions programs must comply with strict scrutiny, may never use race as a stereotype or negative, and must—at some point—end.” For the present, the Chief Justice writes that “Respondents’ admissions systems fail each of these criteria and must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment.”

Among the reasons for so holding include the majority’s view that the two universities have failed to operate their race-based admissions programs in a manner that is “sufficiently measurable to permit judicial [review]” according to strict scrutiny. The Court also holds that respondents’ admissions programs fail to articulate a meaningful connection between the means they employ and the diversity goals they pursue. For example, the Court cites that various ethnic and racial classifications are over-inclusive or under-inclusive. The majority also concludes that Respondents’ race-based admissions systems violate the Equal Protection Clause’s commands that race may never be used as a “negative” and that it may not operate as a stereotype.

This closes the book on affirmative action in college admissions for the current term, but I don’t think it will be forever. I’ll save for another time suggesting other theories and policies that colleges and universities might follow to achieve better representation of certain races and ethnicities and tactics that should be employed in obtaining validation of its decisions. For now, the Court has spoken, and with a division that likely mirrors the division on the subject in American society, though, contrary to much commentary, the Justices on both sides are pursuing a judicial, not a political, function.

Groff v. DeJoy represents another instance of the Court’s emphasis on religious freedom and in granting it precedence over other interests. However, while many of its cases in the area—for example, where religion might come into conflict with reproductive rights or gender identity—Groff finds a unanimous Court, per Justice Alito, holding that Title VII of the Civil Rights Act of 1964 requires that an employer that denies a religious accommodation to an employee must show that the burden of granting an accommodation would result in “substantially increased costs in relation to the conduct of its particular business.” This is a factual question, the resolution of which requires remand to the trial court. The issue, as the Court understands, also will result in regulatory action by the Equal Employment Opportunity Commission (EEOC).

Gerald Goff, an Evangelical Christian who, for religious reasons, cannot work on Sundays, performed a mail-sorting function for the United States Postal Service (USPS). The USPS originally accommodated Mr. Goff by twice transferring him to locations that did not sort mail on Sundays, but when contractual obligations to Amazon required Sunday work at those locations, Mr. Goff, who no longer could be accommodated, was forced to resign.

Mr. Goff’s suit under Title VII failed in the Third Circuit based on the Supreme Court’s decision in Trans World Airlines, Inc. v. Hardison, 432 U. S. 63 (1977), which had been construed to mean “that requiring an employer ‘to bear more than a de minimis cost’ to provide a religious accommodation is an undue hardship.” Especially in light of the law that had developed under the Americans with Disabilities Act, both parties conceded that the Hardison opinion required clarification, but the unanimous Supreme Court declined to accept the suggestions of the parties or the interpretation of the EEOC. As to the latter, the Court didn’t find the EEOC’s guidance unfounded, but instead that it likely would have to be revisited in light of yesterday’s clarification.

Justice Alito notes at the outset that “undue hardship” in Title VII means what it says, and determining whether such a hardship might be “substantial” in the context of an employer’s business is a matter of common sense. That might not be so easy to do. In applying it, the Court states that Title VII requires an assessment of a possible accommodation’s effect on “the conduct of the employer’s business,” and the impact on a claimant’s coworkers is relevant only with regard to the effect on the conduct of the business itself. Nor can the hostility of other employees to a religious practice or accommodation enter into the decision. Under Title VII, an employer must do more than assess the reasonableness of particular accommodations. On the facts of the case at bar, the employer must be able to demonstrate that forcing other employees to work overtime would constitute an undue hardship. Consideration of other options would also be necessary.

The Court states that “[h]aving clarified the Title VII undue-hardship standard, [it] leaves the context-specific application of that clarified standard in this case to the lower courts in the first instance.” Employment lawyers on all sides might be rejoicing at this—or at least awaiting the regulatory clarification mentioned above—because decision-making under this standard is so fact-based that summary judgment in litigation will be hard to achieve. Previous cases have considered whether a burden is substantial, but at what length does such a burden become an undue hardship? TBD.

Finally, Justice Alito again spoke for a unanimous Court (with several concurrences) in Abitron Austria GMBH v. Hetronic Int’l, Inc, holding that the provisions of the Lanham Act contained in 15 U.S.C. §1114(1)(a) and §1125(a)(1), are not extraterritorial and extend only to claims where an infringing use in commerce is domestic.

The case concerns a trademark dispute between a U.S. company and six foreign companies, and relevant conduct occurred both within and without the United States. Applying a two-step regime, the Court held in a case where Congress has not stated “affirmatively and unmistakably” that a statute is extraterritorial in nature, a plaintiff must establish that “the conduct relevant to the statute’s focus occurred in the United States.” This analytical mode was not followed in the case where the issue concerned “confusion,” which is a characteristic of an offending use but is not the use itself. Accordingly, the case has been remanded to assess the concept of “use in commerce” as applied to the facts of the case.

The Supreme Court’s term is about to end, and this blog will return as the remaining cases come down.

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